London borough wins Supreme Court battle over highways powers

A London council has won its appeal to the Supreme Court in a highways case that concerned a local authority’s overlapping powers and requirements to pay compensation.

The London Borough of Harrow said that the ruling would give councils around the country more powers to tackle the problem of motorists who drive across the pavement to get to and from their property.

The respondent in Cusack v London Borough of Harrow [2013] UKSC 40 was a solicitor who had practised from a property on a main road in Harrow since 1969.

From an unknown date, the garden at the front of the property had been turned to a forecourt for use as a car park for staff and clients. Cars were required to cross a footpath to reach the forecourt.

Harrow, as the highway authority, informed Cusack in January 2009 that the movement of the vehicles represented a danger to pedestrians and other motorists. The council also told him that it planned to erect barriers in front of the property and neighbouring properties to prevent cars driving over the footpath.

Cusack sought an injunction restraining the council from erecting the barriers. A county court judge refused, concluding that Harrow had power to erect the barriers under s. 80 of the Highways Act 1980.

Section 80 permits a highways authority in certain circumstances to erect and maintain fences or posts for the purpose of preventing access to a public highway.

Cusack appealed. The Court of Appeal ruled in his favour, concluding that s. 80 was not applicable as Harrow had a different power available to it under s. 66(2) of the 1980 Act.

This section empowers a highway authority to erect and maintain walls, rails, fences and the like if necessary for the purpose of safeguarding persons using the highway. Importantly, it also requires – unlike s. 80 – the authority to pay compensation to Cusack.

The Supreme Court has now unanimously upheld Harrow’s appeal.

Giving the lead judgment, Lord Carnwath said Cusack, as owner of property fronting on to the highway, would have had a common law right of access without restriction from any part of the property.

However in practice those rights had been much circumscribed by statute. The judge said there was no general rule to the effect that payment of compensation was required where action was taken to restrict access.

It had been suggested by counsel for Harrow that the case represented an opportunity for the Supreme Court to make it clear that canons of construction should have a limited role to play in the interpretation of statutes. This included the principle that a specific statutory provision excludes the application of an inconsistent and more general statutory provision.

But Lord Neuberger, the Supreme Court President, said: “In my view, canons of construction have a valuable part to play in interpretation, provided that they are treated as guidelines rather than railway lines, as servants rather than masters. If invoked properly, they represent a very good example of the value of precedent.”

He added: “Provided that it is remembered that the canons exist to illuminate and help, but not to constrain or inhibit, they remain of real value.”

Lord Carnwath said the general/specific principle did not assist in this case. “I see no reason to regard either power as more specific or less general than the other.”

The President also said it was not possible to treat s. 66(1) as a specific provision in contrast with s. 80(1) as the more general provision. “They are….simply different provisions concerned with overlapping aims and with overlapping applications.”

Lord Carnwath highlighted how the 1980 Act was the result of a “complex evolutionary history extending over more than 130 years”, adding that it was not surprising that it contained a varied miscellany of sometimes overlapping and not always consisted statutory powers.

The judge said Harrow was entitled to rely on the “clear words” of s. 80 for the powers it sought, and that there was no express or implied restriction on its use. It did not matter that s. 66(2) could be used to achieve the same purpose.

Lord Carnwath said judicial review was not excluded in circumstances where there were concerns that the power might be abused to override specific prohibitions in s. 66.

The judge meanwhile concluded that the Human Rights Act 1998 did not preclude the council from relying on s. 80. Cusack had not been deprived of any property and there was no breach of his right to peaceful enjoyment of his property under article 1 of the First Protocol (A1P1) to the ECHR, he said.

Lord Neuberger said the erection of barriers in front of the property did not involve the deprivation of a possession, but was a control of the use of the property.

Lord Carnwath said the case fell in the general field of land development and town planning, in which the state was allowed a wide margin of appreciation.

“The issue of proportionality [of the interference with Cusack’s rights under A1P1] is not hard-edged, but requires a broad judgment as to where the ‘fair balance’ lies,” he added.

The judge said that although there was no general right to compensation under A1P1, the absence of compensation is relevant to the proportionality of any interference with the rights guaranteed by A1P1.

Lord Carnwath added that there had been no challenge by Cusack to the compatibility of s. 80 with A1P1. “Accordingly, the mere fact that another statutory route was available involving compensation does not in itself lead to the conclusion that reliance on section was disproportionate.”

The President said that A1P1 did not carry with it a general rule that, where the state seeks to control the use of property, and could do so under two different provisions, which have different consequences in terms of compensation, it is obliged to invoke the provision which carries some (or greater) compensation.

It was also held that a use of property that was immune from planning enforcement measures, and was therefore to be regarded as lawful under section 191(2) of the Town and Country Planning Act 1990, was not to be treated for all purposes as being the subject of a deemed planning permission.

Cusack’s use of the vehicular access to his property via the footpath was, therefore, different from the use of a means of access that was authorised by planning permission (and which, by virtue of section 80(3)(c), could not be obstructed by the use of the power conferred by section 80).

Responding to the Supreme Court ruling, Harrow said it would now install the barriers on the road in question and also look at doing so in other parts of the borough where there is a similar problem.

Its Leader, Cllr Thaya Idaikkadar, said: "Harrow Council has a duty to protect taxpayers’ money, not shell out money in unwarranted compensation.

“These barriers are being installed to stop people from driving across the pavement and endangering the lives of others. People are not entitled to compensation just because they are inconvenienced by vital safety measures.”

This article is partly based on the Supreme Court’s press summary.